(PC) Colbourn v. Draper

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ORRIN TYLER COLBOURN, No. 2:23-cv-02918-EFB (PC)

12 Plaintiff,

13 v. ORDER

14 B. DRAPER, et al.,

15 Defendants.

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17 Plaintiff, a county jail inmate proceeding without counsel in an action brought under 42

18 U.S.C. § 1983 (ECF No. 1), seeks leave to proceed in forma pauperis (ECF No. 2). As discussed

19 below, the request is granted, and the court will screen the complaint. 28 U.S.C. § 1915A(a).

20 Application to Proceed in Forma Pauperis

21 Pursuant to 28 U.S.C. § 1915, federal courts are authorized to allow certain litigants to sue

22 without prepayment of the ordinary filing fee (commonly referred to as “proceeding in forma

23 pauperis”). These litigants must demonstrate that they are unable to pay the fee. 28 U.S.C. §

24 1915(a)(1) and (2). Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1)

25 and (2).

26 Prisoners face additional barriers to proceeding in forma pauperis. One such barrier,

27 known as the “three strikes” provision, provides: “In no event shall a prisoner bring a civil action

28 under this section if the prisoner has, on 3 or more occasions, while incarcerated or detained in

1 any facility, brought an action or appeal in a court of the United States that was dismissed on the

2 ground that it is frivolous, malicious, or fails to state a claim upon which relief may be granted,

3 unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g);

4 Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). Prior cases that fall within the

5 categories described by section 1915(g) are known as “strikes.” Thus, under section 1915(g), a

6 prisoner with three or more strikes (and who was not under imminent danger at the time of filing

7 the complaint) may not proceed in forma pauperis and must instead pay the full filing fee up

8 front. Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007).

9 A case is “frivolous” under section 1915(g) “if it is of little weight or importance having

10 no basis in law or fact.” King, 398 F.3d at 1121 (internal quotation marks omitted). “A case is

11 malicious if it was filed with the intention or desire to harm another.” Id. And a case “fails to

12 state a claim under which relief may be granted” if it fails to state a claim under Federal Rule of

13 Civil Procedure 12(b)(6). Id.

14 A court may raise a plaintiff’s three-strikes status sua sponte during screening, and in

15 doing so the court must identify the three cases that constitute strikes but need not provide the

16 plaintiff additional process. Ray v. Lara, 31 F.4th 692, 697 (9th Cir. 2022). The Court has sua

17 sponte considered plaintiff’s previous civil actions while incarcerated:1

18 Colbourn v. Done, et al., No. 2:19-cv-02308 (E.D. Cal., filed November 15, 2019). ECF

19 Nos. 21 at 7, 36, 43. In this matter, plaintiff’s allegations were so vague and conclusory that the

20 Court was unable to determine whether the action was frivolous or failed to state a claim for

21 relief. The Court granted plaintiff leave to amend his complaint. Plaintiff failed to file an

22 amended complaint after being granted two extensions, and the Court dismissed the action for

23 failure to prosecute. This action is a strike because it is clear from the screening order that the

24 original complaint failed to state a non-frivolous, actionable claim and plaintiff did not attempt to

25 state a non-frivolous, actionable claim in an amended complaint. See El-Shaddai v. Zamora, 833

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27 1 Each of these civil actions was dismissed before plaintiff filed this lawsuit on December

14, 2023.

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1 F.3d 1036, 1042 (9th Cir. 2016) (in determining whether a dismissal counts as a strike, “the style

2 of the dismissal or procedural posture is immaterial. Instead, the central question is whether the

3 dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” (citations

4 omitted)).

5 Colbourn v. California Courts, et al., No. 2:20-cv-00725 (E.D. Cal., filed April 8, 2020).

6 ECF Nos. 47 at 3-5, 53. In this matter, plaintiff’s complaint was dismissed because he failed to

7 state a cognizable claim under § 1983. Plaintiff’s civil rights complaint could not be “salvaged”

8 by converting it into a petition for writ of habeas corpus for multiple reasons including: (1)

9 failure to name the warden as a defendant; (2) demand for punitive damages; (3) non-cognizable

10 grounds for a habeas action (allegation that the state violated its own laws does not create a

11 cognizable federal claim); and (4) plaintiff had raised similar claims in previous habeas corpus

12 petitions. ECF No. 47 at 4-5. According to El-Shaddai, 833 F.3d at 1047, a civil claim that is

13 “like a habeas petition” is outside the scope of the [Prison Litigation Reform Act of 1995].”

14 Plaintiff’s civil complaint in California Courts was sufficiently “like a habeas petition” that the

15 district court rejected converting the complaint to a habeas petition only for reasons that were

16 more technical than substantive, and indeed because plaintiff had raised similar issues in his

17 previous habeas petitions. Therefore, the Court will not count California Courts as a strike.

18 Colbourn v. Darnell, et al., No. 2:20-cv-01937 (E.D. Cal., filed September 28, 2020).

19 ECF Nos. 5 at 2-3, 14, 18, 21 at 1-2. In this matter, the Court’s screening order found that

20 plaintiff’s complaint failed to state a claim upon which relief may be granted under federal law.

21 The Court granted plaintiff leave to file an amended complaint. Plaintiff filed three amended

22 complaints which failed to comply with pleading requirements. The Court granted plaintiff leave

23 to file a fourth amended complaint. Plaintiff’s fourth amended complaint was dismissed because,

24 to the extent the Court was able to “make some sense” of the fourth amended complaint, it failed

25 to state a cognizable federal claim. This action is a strike because it was dismissed for the explicit

26 reason that the complaint failed to state a claim upon which relief may be granted. See King, 398

27 F.3d at 1121 (a dismissal for failure to state a claim “plainly qualifie[s] as a strike”).2

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1 The Court concludes that, while it is a close question as to plaintiff’s civil complaint in

2 California Courts, plaintiff is not yet a three-strikes litigant for purposes of 28 U.S.C. § 1915(g).

3 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

4 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. §

5 1915(b)(1) and (2).

6 Screening Standards

7 Federal courts must engage in a preliminary screening of cases in which prisoners seek

8 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §

9 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of

10 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief

11 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.”

12 Id. § 1915A(b).

13 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

14 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

15 plain statement of the claim showing that the pleader is entitled to relief, in order to give the

16 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

17 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v Gibson, 355 U.S. 41 (1957)).

18 While the complaint must comply with the “short and plain statement” requirements of Rule 8, its

19 allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 U.S.

20 662, 679 (2009).

21 To avoid dismissal for failure to state a claim a complaint must contain more than “naked

22 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

23 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

24 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

25 678.

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claim for relief. Colbourn v. Mantei, et al., No. 2:11-cv-00340 (E.D. Cal., filed February 7,

27 2011). ECF Nos. 4, 71, 72. It was ultimately dismissed on plaintiff’s motion for voluntary

dismissal.

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1 Furthermore, a claim upon which the court can grant relief must have facial plausibility.

2 || Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

3 | content that allows the court to draw the reasonable inference that the defendant is liable for the

4 || misconduct alleged.” Jgbal, 556 U.S. at 678. When considering whether a complaint states a

5 | claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

6 | Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

7 | plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

8 Screening Order

9 Plaintiff's garbled and disjointed allegations are presented as three distinct claims. Each

10 | of plaintiffs three claims implicates its own set of plausible defendants, although plaintiff's style

11 | of handwriting and of describing his claims creates uncertainty in determining the actual identities

12 | of most of the defendants, as well as which defendants plaintiff intends to sue on which of his

13 | claims?

14 First, plaintiff alleges he has been illegally arrested and imprisoned pursuant to false

15 || police reports, and held at the Butte County Jail, by the unspecified actions of the “CHP” and the

16 || “OPD”>, Judge Caraway, prosecutors, and attorneys. ECF No. 1 at 5. It might plausibly be

17 | inferred that the defendants who plaintiff intends to associate with this claim may also include:

—_§_ AA

3 Plaintiff’s handwriting style has led to apparent misidentification of several defendants

19 | on the docket. See ECF No. 1 at 3-4. For example: (1) the actual name of the defendant

20 identified as “Pauh Vue” may be “Paul Vue”; (2) the actual title and name of the defendant

identified as “Amorney Harry Pihgrim” may be “Attorney Harry Pilgrim”; (3) the defendant

91 || identified as “Amorney” may be an (otherwise unidentified) “Attorney”; and (4) the defendant

identified as “Ejidence Amorney” may or may not be an intended defendant, and may be

22 | plaintiffs reference to an attorney and/or to evidence and/or to an alleged issue with evidence.

Some of the individual defendants’ names also appear to be spelled inconsistently throughout the

23 | complaint.

This screening order tentatively refers to the individual defendants as they are identified

on the docket.

25 pe a:

* Plaintiff uses only the acronym “CHP” to identify this defendant. Although the court

26 || infers this as a reference to the California Highway Patrol.

27 > Plaintiff uses only the acronym “OPD” to identify this defendant. Presumably, this is a

28 reference to the Oroville Police Department.

1 (1) the defendant tentatively identified as Judge Copregaza; (2) police officers who may include

2 the defendants identified as B. Draper, Z. Tarris, Darnelle, Collins, Paul Vue, M. Stokes,

3 Halierman, Chad Stewart, and Frank Rivera; and (3) prosecutorial and/or defense attorneys

4 including the attorney tentatively identified as Harry Pihgrim. However, such inferences are

5 speculative because plaintiff has named only Judge Caraway in stating this claim.

6 Second, plaintiff alleges one or more deputies at the Butte County Jail are ejaculating in

7 the food served at the Jail and/or that plaintiff is being given contaminated and/or poisoned food.

8 Id. at 6. Plaintiff does not identify which, if any, of the defendants are responsible for the alleged

9 food contamination. Although it might be possible to infer that the defendants separately

10 described as “bad deputies” (Ryan Nohand, Khols, Done,6 and Steve T. Colbourn), see id. at 4,

11 are responsible for the food contamination, such an inference would be speculative. Plaintiff does

12 imply that Judge Caraway, the Parole Board, and unspecified “Courts” are (perhaps indirectly)

13 responsible for holding him captive and falsely imprisoned. Id. at 6.

14 Third, plaintiff alleges he has been refused a California Parole Board hearing to present

15 evidence and witnesses, possibly relating to false police reports and the unspecified actions of

16 defendant officers whose names plaintiff mentions in this claim (Draper, Tarris, Collins, and

17 Darnelle), and possibly also that plaintiff’s speedy trial rights have been violated. Id. at 7.

18 Plaintiff designates each of his three claims as stating violations of his constitutional rights

19 under the Eighth Amendment, and as unspecified forms of retaliation. Id. at 5, 6, 7. Plaintiff

20 seeks money damages and to be “released A-SAP.” Id. at 8.

21 To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal

22 constitutional or statutory right; and (2) that the violation was committed by a person acting under

23 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

24 940, 934 (9th Cir. 2002).

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6 In Colbourn v. Done, et al., No. 2:19-cv-02308 (E.D. Cal., filed November 15, 2019),

27 plaintiff alleged a Deputy Sheriff Done, along with other Butte County Jail and Sheriff’s

Department officials, were poisoning his food with snake venom. See ECF No. 21 at 3.

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1 As drafted, plaintiff’s complaint presents no cognizable federal claims. It is largely

2 incomprehensible, lacks substance, and fails to specify how any particular defendant was

3 involved in violating plaintiff’s federal statutory or constitutional rights.

4 The Eighth Amendment protects prisoners from inhumane methods of punishment and

5 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

6 2006). “Prison officials have a duty to ensure that prisoners are provided adequate shelter, food,

7 clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731-32

8 (9th Cir. 2000) (quotations and citations omitted). To state a failure-to-protect claim against an

9 official, an inmate must allege: (1) that he was incarcerated under conditions posing a substantial

10 risk of serious harm; and (2) that the official was deliberately indifferent to his safety. Id.

11 “Deliberate indifference” occurs when an official knows of and disregards an excessive risk to an

12 inmate's safety. Id. at 837. “[T]he official must both be aware of facts from which the inference

13 could be drawn that a substantial risk of serious harm exists, and he must also draw the

14 inference.” Id. A claim for damages against a prison official requires a showing that the

15 official’s deliberate indifference actually and proximately caused deprivation of the plaintiff’s

16 Eighth Amendment rights. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

17 Plaintiff's allegations of contaminated food are too vague and conclusory to state a viable

18 Eighth Amendment claim. The contaminated food allegation is that: “Butte County Judge

19 Caraway laten [sic] klots [sic] & Butte jail deputies are jacking off in the food & poisoning the

20 food & holding me captive.” ECF No. 1 at 6. Plaintiff fails to allege a factual basis showing that

21 any individual, identifiable prison official is responsible for the food contamination he alleges.

22 Similarly, plaintiff inserts words and phrases such as “retaliation,” “false imprisonment,”

23 and “due process” in his complaint, without connecting them to any allegations showing any

24 factual basis for any retaliation, false imprisonment, or due process claim. Such untethered

25 claims are not sufficient to survive screening.

26 The complaint fails to state a First Amendment retaliation claim because it does not allege

27 that any defendant took an adverse action against plaintiff because plaintiff had engaged in

28 conduct that is protected by the First Amendment. See Rhodes v. Robinson, 408 F.3d 559, 567-

1 568 (9th Cir. 2005). If plaintiff intends to pursue a retaliation claim in an amended complaint, he

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must allege facts showing: (1) conduct that is protected by the First Amendment (such as filing

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or intending to file a complaint against a defendant); (2) that a defendant was aware of his First

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Amendment protected conduct; and (3) that the protected conduct was “the ‘substantial’ or

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‘motivating’ factor” behind defendant’s allegedly adverse actions. See Brodheim v. Cry, 584 F.3d

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1262, 1271 (9th Cir. 2009).

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To the extent plaintiff is alleging claims of false arrest, false imprisonment, and/or lack of

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due process in his criminal proceedings, these claims are barred by Heck v. Humphrey, 512 U.S.

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477 (1994). Heck holds that if success in a section 1983 action would implicitly question the

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validity of confinement or its duration, the plaintiff must first show that the underlying conviction

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was reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal,

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or questioned by the grant of a writ of habeas corpus. See Muhammad v. Close, 540 U.S. 749,

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751 (2004). Some of the defendants may also have immunity from false arrest and/or false

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imprisonment claims. Acres Bonusing, Inc. v. Marston, 17 F.4th 901, 915 (9th Cir. 2021) (judges

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enjoy absolute immunity from civil suits for damages); Imbler v. Pachtman, 424 U.S. 409, 427-28

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(1976) (prosecutors are absolutely immune from civil suits for damages under § 1983 challenging

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activities related to the initiation and presentation of criminal prosecutions); Buckley v.

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Fitzsimmons, 509 U.S. 259, 273 (1993) (prosecutorial immunity extends to pretrial preparation).

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Thus, plaintiff's claims for damages based on false arrest, false imprisonment, and/or lack of due

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process in his criminal proceedings against Judge Caraway, Judge Copregaza, and any defendants

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who are prosecuting attorneys are not cognizable.

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The complaint also attempts to impermissibly join claims that may not be pursued in a

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single action. Plaintiff’s claims about the criminal proceedings resulting in his confinement are

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completely unrelated to his claims about his conditions of confinement at the Jail. Federal Rule

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of Civil Procedure 18(a) allows a plaintiff to assert multiple claims when they are against a single

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defendant. Federal Rule of Civil Procedure 20(a)(2) allows a plaintiff to join multiple defendants

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to a lawsuit where the right to relief arises out of the same “transaction, occurrence, or series of

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1 transactions or occurrences” and “any question of law or fact common to all defendants will arise

2 in the action.” Unrelated claims against different defendants must therefore be pursued in

3 separate lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). This rule is intended

4 “not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but

5 also to ensure that prisoners pay the required filing fees—for the Prison Litigation Reform Act

6 limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment

7 of the required fees. 28 U.S.C. § 1915(g).” Id.

8 Some of plaintiff’s allegations in this lawsuit - about being refused a Parole Board hearing

9 and/or not being allowed to present evidence and witnesses - appear to be duplicative of the claim

10 he has alleged in his earlier-filed pending lawsuit at Colbourn v. Butte Courthouse Parole Board,

11 et al., No. 2:23-cv-02316 (E.D. Cal. filed October 23, 2023). ECF No. 1 at 3. Plaintiff’s Eighth

12 Amendment claim in the Butte Courthouse Parole Board lawsuit is alleged against several of the

13 same defendants here, including CHP, OPD, B. Draper, A. Farris [i.e., Tarris], Collins, and

14 Darnell [i.e., Darnelle]. Plaintiff may not “maintain two separate actions involving the same

15 subject matter at the same time in the same court and against the same defendant[s].” Adams v.

16 Cal. Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (citation and internal quotation

17 marks omitted), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008).

18 Plaintiff’s complaint, as drafted, fails to state a cognizable claim for violation of any

19 constitutional right, improperly joins unrelated claims, and appears to present one or more claims

20 that duplicate plaintiff’s earlier-filed Butte Courthouse Parole Board lawsuit currently pending in

21 this Court. Plaintiff will be granted an opportunity to amend his complaint to state cognizable

22 claims that are not duplicative of his earlier-filed Butte Courthouse Parole Board lawsuit.

23 Leave to Amend

24 Plaintiff’s complaint is dismissed with leave to amend. If plaintiff chooses to file an

25 amended complaint it should observe the following:

26 Any amended complaint must identify as a defendant only persons who personally

27 participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

28 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

1 constitutional right if he does an act, participates in another’s act or omits to perform an act he is

2 legally required to do that causes the alleged deprivation). The amended complaint must contain

3 a caption including the names of all defendants. Fed. R. Civ. P. 10(a). The amended complaint

4 should also describe, in sufficient detail, how each defendant personally violated or participated

5 in the violation of his rights. Full names of institutional defendants must be stated and not just

6 abbreviations or acronyms such as “CHP” or “OPD.” The Court will not infer the identity of

7 defendants, nor the existence of allegations that have not been explicitly set forth in the amended

8 complaint.

9 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See

10 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Nor may he bring multiple, unrelated claims

11 against more than one defendant. Id. The amended complaint should include only claims that are

12 related because they concern the same event (or series of related events) or the same defendant.

13 The amended complaint may not duplicate the claims plaintiff has alleged in his Butte

14 Courthouse Parole Board lawsuit pending before this Court.

15 Any amended complaint must be written or typed so that it is complete in itself without

16 reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

17 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

18 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

19 F.3d 1467, 1474 (9th Cir. 1997) (the ‘amended complaint supersedes the original, the latter being

20 treated thereafter as non-existent[]’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)).

21 Finally, the court notes that any amended complaint should be as concise as possible in

22 fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of

23 procedural or factual background which has no bearing on his legal claims.

24 Conclusion

25 Accordingly, it is ORDERED that:

26 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is GRANTED;

27 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected

28 in accordance with the notice to the Butte County Jail filed concurrently herewith;

1 3. Plaintiff's complaint (ECF No. 1) is DISMISSED with leave to amend within 30

2 | days of service of this order; and

3 4. Failure to comply with this order may result in dismissal of this action for the

4 || reasons stated herein.

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6 | Dated: May 7, 2024 Za! tin (LACAN

7 UNITED STATES MAGISTRATE JUDGE

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